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HomeMy WebLinkAbout33-Council Office ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Neil Derry Subject: Reactivation of Parolee Sweeps Councilmember,Fourth Ward Dept: COUNCIL OFFICE Date: July 12, 2007 M&CC: July 16, 2007 Synopsis of Previous Council Action: None. Recommended motion: The Mayor and City Council directs the Police,Fire,Code Enforcement and other pertinent City departments to assist the City Attorney's Office by participating in team inspections of parolee housing facilities to gather evidence to be used by the City Attorney for prosecutions and other actions u er his au ity. Signature Contact person: Neil Derry Phone: 5188 Supporting data attached: July 11, 2007 memo from City Attorney Ward: FUNDING REQUIREMENTS: Amount: NIA Source: Finance: Council Notes: Agenda Item No. CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Staff Report Subject: Reactivation of Parolee Sweeps Background: According to recent newspaper reports, the City of San Bernardino has had a doubling of the number of parolees in our city from the year 2000 to today while our region as a whole has seen only a 12 percent increase over that same period. Statistics have long proven that the parolee population tends to repeat offend as much as 80% of the time. We, at the local level, cannot solve or cure the parolee rehabilitation problem, as much as we may want to, because that responsibility is currently the State's to solve. However, we can attempt to halt or at least thwart the parolee recidivism rate by consistently and aggressively inspecting parolee housing that must at least meet health and safety standards, in order to ensure the safety of the surrounding community and those parolees whom are attempting to rehabilitate themselves. City Code Enforcement clearly lacks the capacity in both manpower and experience in dealing with this issue and it would be highly imprudent to have code enforcement deal with paroled felons on their own. Additionally, any action without the direct involvement of the City Attorney's office would open the city to potential litigation as code enforcement lacks the necessary prosecutorial immunity to carry out such sensitive actions. It is all too clear that the state has ignored its responsibilities and has engaged in parolee dumping within San Bernardino. I am all too familiar with this issue as a former staff member for then Assemblymember Fred Aguiar, who authored the initial legislation on parolee dumping (AB 614) in 1996. The City of San Bernardino must proactively engage these facilities to ensure their compliance with state law and city ordinances. Only a collaborative effort with numerous city departments can achieve the safe and appropriate housing of parolees and the safety of our community. Through this Council action, I respectfully request that my col'-- A;,-Pt-t the Citv Manager to encourage and assist in consistent and aggressive memo from the City Attorney' office, to resume the previous] program of parolee housing under the City Attorney's prosecute other city department or office has. �3 0 . Thank you for your consideration. CITY OF SAN BERNARDINO ' INTEROFFICE MEMORANDUM NEGENEJ C I'Y ATTCFihItY TO: James Penman, City Attorney 20,97 AL 10 P7' 2 51 FROM: Council Office SUBJECT: Growth in Parolee Population in San Bernardino DATE: July 10, 2007 COPIES: According to The Sun, the parolee population has increased significantly. In the past years, the City coordinated sweeps of parolee housing facilities to insure that these housing facilities were in compliance with State law. What actions need to be taken by the Council to reactivate the parolee sweeps? NEIL DERRY Councilman, Fourth Ward ND:sl ARp� SP e e. 'd A^ OFD tN INTER OFFICE MEMORANDUM IC = CITY ATTORNEY To: Councilman Neil Derry From: James F. Penman City Attorney Date: July 11, 2007 Subject: Reactivation of Parolee Sweeps Copies: Mayor, Councilmembers, City Clerk, City Manager In response to your memorandum of July 10 (copy attached), regarding the above-referenced topic, the following information is offered. The San Bernardino City Attorney's Office presently coordinates one team inspection per month, with the exception of the holiday months of November and December. These inspections are usually focused on apartment complexes. Occasionally, a single-family house, a business, or other structure is inspected by the inspection team. Inspection locations are chosen by the Chief of Police, or his designee. The purpose of these inspections is to gather evidence for the City Attorney's Office to determine whether or not the location inspected is in violation of any Municipal Codes, including the Uniform Building Code, Uniform Fire Code, Uniform Code for the Abatement of Dangerous Buildings, etc., all of which have been adopted by this City. This evidence is used to determine if the City Attorney's Office should prosecute the building's owners/occupants with criminal citations or"long-form complaints", or whether the City Attorney's Office should bring a civil action in the name of the People of the State of California to abate the property using the State's Nuisance Abatement Act,Narcotics Abatement Act, or, on occasion, the Red-Light Abatement Act. The process for these inspections is important since it confers prosecutorial immunity on Police, Code Enforcement, Fire Inspectors, and their supervisors. This is because their assistance and participation is at the request of the City Attorney's Office which is carrying out its City Prosecutor responsibilities conferred by the City Charter/City Municipal Code and State Law. The current team inspections have had the support of the Mayor's Office, the City Manager, and the participating City departments. As a result of the Mayor's efforts, several San Bernardino Councilman Neil Derry July 11, 2007 Page two County departments have joined in these inspections. This collaborative effort has made these team inspections even more productive than they were in previous years. In 2000, the inspection team, at the request of the City Attorney's Office, inspected and closed a number of illegal parolee halfway houses in this City. In each case, these houses had more than six parolees in residence, and each house had numerous Municipal Code violations. As a result, at least seven were closed. Additionally,pursuant to this City's permissive Development Code (a Development Code that only permits the land uses specifically listed), use as parolee halfway houses was not permitted and none of those houses were eligible for licensing. As a result of the information discovered during these inspections, in October 2000, then Secretary of the State Youth and Adult Correctional Agency, Robert Presley, said he had determined that State Parole had violated its own guidelines by placing certain parolees in the City of San Bernardino. Secretary Presley said there were at least 400 parolees in the City who should not be here and announced that he was imposing a cap of 700 parolees for the City of San Bernardino. He also said he had frozen all transfers into the City and, until the 400 parolees were removed, no new parolees would be sent here. At that time, State Parole said the City had 1,101 parolees. On February 20, 2001, San Bernardino Police reported that State Parole had removed from the City of San Bernardino 200 of the 400 parolees who should not have been here. Police also said no new parolees were being allowed to come to San Bernardino. This was the last time the parolee population of this City was in significant decline. According to State Parole statistics, San Bernardino's parolee "base" (not the actual count) at this time was estimated to be 970 parolees. On March 23, 2001, State Parole officials publically announced that the cap of 700 parolees for this City was not viable. At the present time, there are an estimated 1,800 to 2,000 parolees in the City of San Bernardino. This does not include parolees-at-large who are here illegally from other jurisdictions. We are presently aware of at least three locations that are being used to illegally house parolees in violation of the State's limit of no more than six beds per facility. These three locations are also allegedly in violation of the City's Municipal Code, specifically the Uniform Fire Code, the Uniform Building Code, and the Uniform Code for the Abatement of Dangerous Buildings, as well as other codes that have also been adopted by this City. Inspections would be necessary to confirm this information. Councilman Neil Derry July 11, 2007 Page three These locations are not only dangerous for the community as a whole, they are dangerous for the parolees who are housed in these unsafe, often over-crowded and unsanitary buildings. It is difficult for a parolee to attain successful rehabilitation when he/she is placed in one of these locations. The peer pressure, lack of supervision, and the temptations provided at these sites, which sometimes include drugs and alcohol, guarantee that even the most reform-minded parolees will face additional obstacles on their path to rehabilitation. In response to your specific question, in order for us to gather the necessary evidence by inspecting the locations of which we are presently aware, and others that Police Officers claim are in our City, Police, Fire, Code Enforcement, and other pertinent City departments would have to receive authorization from the Mayor and City Council to assist the City Attorney's Office by participating in team inspections to gather evidence to be used by this office. Following the same procedure presently in effect for the team inspections provides legal protection for the inspectors, City officials, other City personnel, and the City as an entity. This is because the involved City personnel would have prosecutorial immunity for their actions during these inspections. The legal basis for the prosecutorial immunity is that the involved City personnel would be responding to requests made by the City Prosecutor to gather evidence for prosecutions, and said personnel would be acting pursuant to the authority of the City Prosecutor. As is the procedure in the current team inspections, the parolee housing inspections would be coordinated by a Deputy City Attorney under the immediate supervision of the Senior Assistant City Attorney for Litigation and Prosecutions and with the assistance of City Attorney Investigators. Also following the current procedure, the site locations would be chosen by the Chief of Police, or his designee, and the inspections would be conducted by City Fire Prevention Officers and Code Enforcement Officers under the supervision of officials in their own departments. Animal Control, Public Services, and Los Padrinos would be involved on an as- needed basis. I believe that such inspections would likely attain the highest degree of success only if the Mayor, the Council, the City Manager, and the involved City departments are willing to act collaboratively in this effort. The inspections that have been carried out over the past several years have demonstrated that such collaboration is possible. If there is no coordination, collaboration, and unity of purpose, the value of such inspections will be greatly diminished. Respectfully submitted, JJ tes F. Penman ity Attorney CITY OF SAN BERNARDINO OFFICE OF THE MAYOR INTEROFFICE MEMORANDUM TO: Members of the Common Council Fred Wilson, City Manager FROM: Mayor Patrick J. Morri SUBJECT: Agenda Item #33 - July 16, 2007 Meeting DATE: July 13, 2007 CC: City Attorney; City Clerk On July 12, 2007, the Mayor and Common Council received information regarding agenda item #33 for the July 16, 2007 meeting of the Mayor and Common Council. As you are aware, the agenda item addresses code enforcement inspections, and parolees living in San Bernardino. Unfortunately, the agenda item and the back-up information was prepared without consultation with city officials who are directly involved in these matters, namely the Code Enforcement Director, the Chief of Police, the City Manager, and the Office of the Mayor. As a result, the back-up documents to the agenda item contain no information regarding the proactive and successful efforts by the Police Department, Code Enforcement Department, and the Office of the Mayor on the issues of code enforcement inspections and dealing with parolees in our city. In addition, I am concerned that there were some factual misstatements and legal confusions contained in the back-up information to agenda item 933. I have asked the Chief of Police, the Code Enforcement Director, and my staff to prepare memos detailing the efforts and successes that have been made by the City over the last 15 months, and the strategies that are currently underway, to address the ongoing code enforcement issues in our city and the issues created by parolees living in our city. These memos also address some of the factual and legal issues contained in the back-up information to agenda item#33. Copies of the memos are attached for your review in advance of our meeting on Monday. A -1- City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Mayor Patrick J. Morris From: Chief Michael A. Billdt Subject: Parole Apprehension Strategies Date: July 13, 2007 Consistent with your direction, the following report regarding the collaborative partnership with California State Parole is submitted for your consideration. I. Apprehension of Parolees at Large • Since 2000, the San Bernardino Police Department has enjoyed a strategic partnership with California State Parole. • Five police officers have been assigned, one for each policing district, to work with their counterparts from State Parole. • Known as Parole liaison officers, the focus of their efforts is to work closely with State Parole agents to monitor parolees released to the City of San Bernardino. • Each week SBPD officers attend a parolee orientation meeting where opportunities and expectations are presented to the parolees. • In February 2007, San Bernardino Police working collaboratively with State Parole identified 85 parolees who were relocated to their counties of commitment consistent with State law. • In support of our long-term relationship with State Parole and in furtherance of efforts as recent as February of this year, Regional Administrator Jeff Fagot has made a commitment of additional State Parole resources that will team with San Bernardino Police Officers. This will provide an enhanced focus on apprehending parolees at large, and will begin in conjunction with our summer deployment model. • SBPD parolee liaison officers within each of the five district commands will work with their counterparts through our continued collaboration with State THE SBPD IS COMMITTED TO PROVIDING: PROGRESSIVE QUALITY POLICE SERVICE; A SAFE ENVIRONMENT TO IMPROVE THE QUALITY OF LIFE; A REDUCTION IN CRIME THROUGH PROBLEM RECOGNITION AND PROBLEM SOLVING MW -�,. Page 2 parole to identify parolees at large within their respective areas and make all practical efforts to take them into custody. Il. Expansion of Operation Phoenix • On June 10, 2006, Operation Phoenix focused on the twenty block area bounded by Baseline and 16'h Street and Sierra Way and Waterman Avenues. At that time 42 parolees were living in the focus area. Since that time eight parolees have successfully discharged, 15 parolees are back in custody, and 7 have moved from the Operation Phoenix area. Two of them moved outside the city and 5 of those remained in the City of San Bernardino. One resides in the central district of town and 4 in the eastern district of our city. Currently, 24 parolees reside in the current Operation Phoenix area. • Consistent with the model implemented in the original Operation Phoenix area, San Bernardino Police and State Parole in the five areas identified for expansion under the Operation Phoenix model will identify parolee housing within each of the focus areas. Parolees, who are residing in the community in violation of their parole terms, will be relocated to their county of commitment consistent with State law. • Through the process of this effort, substandard housing conditions involving the housing of parolees will be identified and referred to Code Enforcement for follow-up. 6 Once significant headway has been made in the five focus areas, the collaboration of State Parole and SBPD officers will then expand their efforts through research to identify other parolee housing locations within the city and determine the nature of compliance at each location. • The protocol will entail referral of substandard housing conditions to Code Enforcement as necessary. CITY OF SAN BERNARDINO CODE COMPLIANCE DEPARTMENT INTEROFFICE MEMORANDUM TO: Patrick Morris, Mayor Fred Wilson, City Manager FROM: Glenn Baude, Director Code Enforcement SUBJECT: INSPECTIONS DATE: July 13, 2007 Code Enforcement routinely does inspection of residential properties. The reason for these inspections is based solely on the conditions of the property. We may also inspect properties that are alleged to be in violation of the Development Code by housing more than 6 unrelated persons (commonly known as "half-way houses" or "group homes") to ensure that the home is in full compliance with the Development Code. If we do not obtain consent to inspect from the owner, we would have to be able to substantiate "reasonable cause" that there are more than 6 persons living in the home to obtain a warrant. However, the residency of the people occupying the residents is not a cause for inspection or within our scope of authority. We cannot obtain an inspection warrant based on a person's race, religion or status nor should we. We do not have any basis to regulate or target parolees - it is not our role or authority. We do routinely run across people on parole in the course of doing inspections on properties. When we do interior inspection on warrants it is normal procedure to have the police department with us. We work cooperatively with many law enforcement agencies including our Police Department as well as Parole and Probation but they perform their roles of dealing with the people issue and we deal with issues related to the condition of properties. We do not attempt to control or direct what they do and they don't involve themselves in our issues; we work collaboratively with each agency performing their particular role. In fact we have performed the following warrants and closures in the 2006/2007 fiscal year with collaboration and support from law enforcement agencies: E S d a f i i WARRANTS CLOSURES* July 2006 10 0 August 2006 10 10 September 2006 10 46** October 2006 17 10 November 2006 4 12 December 2006 4 4 January 2007 12 4 February 2007 12 6*** March 2007 18 13 April 2007 20 18 May 2007 13 18 June 2007 36 13 Total 166 154 * The number of closures were obtained from the Hearing Agenda's. Each unit, if located in a multi-family complex were counted as a separate closure. In addition, the closures were counted in the month that it was taken to hearing and not necessarily in the month that the actual closure took place. In all cases we were conservative in our estimates so a more thorough review would probably show slightly higher numbers. ** This included the closure of Meadowbrook Apartments (Sr. Housing) due to lack of air conditioning in 100°+weather. ***This includes 1 count for the closure of the Clarion Hotel CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM MAYOR'S OFFICE TO: Patrick J. Morris, Mayor FM: Kurt Wilson, Director, Office of Community Safety and Violence Prevention RE: Summary of current efforts to address parolee population DT: July 13, 2007 CC: Fred Wilson,Jim Morris In an effort to increase public safety the Mayor has taken three separate but parallel courses of actions to address the issues and impacts of parolees in San Bernardino during his first 16 months in office. The first is the monitoring of High Risk Sex Offenders and violent gang members with the use of active Global Positioning Satellite technology. The second is the creation of the Mayor's reentry advisory panel. The third is the application and award of $100,000 to fund the planning of a better reentry strategy to lessen the impact on our citizens. Global Positioning Satellite Monitoring of High Risk Parolees Days before officially beginning his term, the Mayor leveraged his experience as a jurist to broker an agreement with the Division of Adult Parole Operations allowing San Bernardino to be the pilot city for the GPS tracking of violent gang members returning from state prison. We are currently monitoring 20 High Risk Sex Offenders and 20 Violent Gang member parolees. Although GPS tracking can be cost prohibitive, the city bears no cost in the current arrangement which has proven effective in removing violent offenders from our streets. The program has been so successful that it has gained the interest of state and local governments from as far away as Alaska, where the state legislature sought the Mayor's counsel as they entered an investigatory stage of the program. In the coming weeks, Fresno officials will travel to San Bernardino to learn first-hand the process of using GPS devices to monitor parolees. Mayor's Reentry Advisory Panel The Mayor's Reentry Advisory Panel is a comprehensive panel of experts, assembled by the Mayor last December, who are advising the Mayor on best-practices and viable options for reducing the victimization rate of our citizens by parolees. The collaboration addresses both policy and practical concepts including the opportunities for, and barriers to, success. Panelists include former top state officials like the Secretary of the California Department of Corrections and Rehabilitation and the Director of the California Youth Authority. It also includes current public officials from the San Bernardino Police Department, county and federal Probation, Sheriff's Department, United States Department of Justice, District Attorney's Office, Department of Behavioral Health, San Bernardino Employment Training Agency, and others. The private sector is represented by Goodwill Southern California, Center for the Study of Correctional Education at Cal State San Bernardino, Restorative Justice Center, United Way, Diocese of San Bernardino, Stop the Violence Foundation, Time for Change Foundation, various employers and treatment providers. The group recently joined the Mayor in hosting a renowned . 1 . former White House official who spoke on the topic. The event drew 150 dignitaries including the Presiding Judge as well as members of the FBI and ATF. The panel continues to meet on an ongoing basis with the next meeting to be scheduled for the Fall. Inter-Governmental Partnership p eentry planning grant from the California Department of Corrections and Rehabilitation Division of Communit�Partnerships In December 2006 the Mayor's Office and its partners were awarded a competitive grant of $100,000 to plan a better reentry strategy—one that reduces the victimization rate of this community. The Inter-Governmental Partnership grant was awarded by the Division of Community Partnerships and began in February 2007. At this point we are nearing the midway point on the grant and have gathered large amounts of data. During the next 6 months this data will be organized and a final report of the findings will be presented early in 2008. We have shared information with the Orange County Reentry Partnership and the cities of Riverside, San Diego, Fresno, Los Angeles, Oakland, Richmond, etc. During this process we have conducted extensive academic research, interviews, site visits, observations, and telephone conversations with a variety of stakeholders. Among these are Governor Schwarzenegger and his Senior staff, the offices of Senators Feinstein and Boxer, current and former Secretaries of the CA Department of Corrections and Rehabilitation, Division of Adult Parole Operations (state and regional directors, local administrator, local agents), Center for the study of Correctional Education, American Association of Community Justice Professionals, California Pan-Ethnic Health Network, victims of crime, current and former parolees, and private contractors currently operating approved residential multi-service centers in LA, San Diego, and Sacramento. During the next phase of the grant,the team will conduct a series of community meetings with various stakeholders. The purpose of the meetings will be to quantify the position and concerns of citizens and business owners. In addition, it will provide an opportunity to educate members of the public on the factual data surrounding the issue of parolees. Information gained as a result of this dialogue will feed the analysis and ultimately contribute to the proposed solution. While many of these efforts have been underway throughout the Mayor's entire term in office, these issues are the result of decades worth of contributing factors. Progress can be seen as a direct result of these efforts but the final solution will not be a quick one. Under the Mayor's direction, we are prepared to continue the current process as we join our partners in the search answers to creating a safer community. v r. CITY OF SAN BERNARDINO OFFICE OF THE MAYOR INTRAOFFICE MEMORANDUM TO: Patrick J. Morris, Mayor FROM: James P. Morris, Chief of Staff—J SUBJECT: Legal Advice from City Attorney on Applicability of "Prosecutorial Immunity" to Code Enforcement Inspections DATE: July 13, 2007 Pursuant to your request, the public legal advice provided by the City Attorney, James F. Penman, regarding the application of "prosecutorial immunity" to city officials and employees has been researched. The results of the research show that Mr. Penman has advised the city directly contrary to well-established and clear law established by the United States Supreme Court and the federal Ninth Circuit Court of Appeals In his memo of July 11th, and in the newspaper the following day, Mr. Penman has advised city officials that it is critical for Mr. Penman and the City Attorney's Office to be granted the power to oversee, control, and lead code enforcement inspections because this will provide city officials and employees a shield from civil rights liability under a legal theory known as "prosecutorial immunity." Mr. Penman has provided this same legal advice directly to the Mayor on at least three previous occasions during discussions about the need of the City Attorney's Office to work collaboratively with other departments and the county during code enforcement inspections. Mr. Penman has not provided any other rationale for his persistent request to be given this authority over code enforcement and police personnel and resources. Were Mr. Penman correct in his interpretation of the law on prosecutorial immunity, every city in California and across the nation would be organizing their code enforcement inspections under their city attorneys. But just the opposite is true. Instead, Mr. Penman has provided the city with an outright misinterpretation of the law, and as a result, both our city and its employees are placed in significant danger and risk of personal and municipal liability. "Prosecutorial immunity" is neither a new legal theory nor a vague one; instead it is a narrowly and clearly defined exception to civil rights liability for government officials. As a general rule, government officials have only "qualified immunity" from civil rights liability in carrying out their duties. Burns v. Reed, 500 U.S. 478; Harlow v. Fitzgerald, 457 U.S. 800 (1982). This means that immunity applies only if a government official's 4- } action could reasonably have been thought consistent with the civil rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635 (1987). Prosecutorial immunity, however, provides a government official absolute immunity from civil rights liability, and as a result, the U.S. Supreme Court has consistently interpreted this absolute immunity very narrowly. Forrester v. White, 484 U.S. 219 (1988). This absolute prosecutorial immunity applies only to conduct that is "intimately associated with the judicial phase criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Absolute immunity does not apply if the person is "performing investigatory or administrative functions, or is essentially functioning as a police officer or detective." Broam v. Bogan, 320 F.3d 1023, 1028 (9t Cir. 2003). In Broam, the Ninth Circuit Court of Appeals made very clear that absolute prosecutorial immunity does not apply to actions "during the investigative phase of a criminal case" or to actions "considered functions of the police," or to actions conducted "prior to having probable cause to arrest." Broam, 320 F.3d at 1033. The court recently reaffirmed this rule when it held that "an act is not `prosecutorial' simply because it has some connection with the judicial process or may have some impact at the trial level. Were that the rule then prosecutors would be absolutely immune from any suit because all actions taken by prosecutors arguably have some connection to the judicial process." Goldstein v. Van De Kamp 9tn Cir., March 28, 2007 (No. 06-55537). Alarmingly, Mr. Penman has advised city officers and employees directly contrary to this clear rule of law. In his memo on July 11, 2007 to the City Council, Mr. Penman stated that his control and organization of code enforcement inspections would provide city personnel "prosecutorial immunity for their actions during these inspections." He further stated that prosecutorial immunity would apply to city personnel during these code enforcement inspections because they "would be responding to requests made by the City Prosecutor to gather evidence for prosecutions." Mr. Penman's advice is completely contrary to the Ninth Circuit Court of Appeals, who has made it very clear that prosecutorial immunity does not apply to actions "during the investigative phase of a criminal case." Broam, 320 F.3d at 1033. It does not matter whether such actions were requested by a city prosecutor or not, nor does it matter whether such code enforcement actions eventually lead to a criminal prosecution. 1d. Code enforcement inspections are done for purposes of ensuring property owners comply with the city's municipal codes, or other applicable laws which the city has jurisdiction to enforce. Last year, over 7,000 code enforcement inspections were completed, and with the exception of very few cases, compliance was enforced through civil citation. When recalcitrant property owners fail to comply, or if the code violations are especially concerning, civil or criminal enforcement may be sought through the courts. Thus, code enforcement inspections are nothing more than an investigatory tool which may lead to the filing of criminal charges. The federal courts have clearly stated that prosecutorial immunity does not apply to "investigative" actions, or to actions "prior to having probable cause to arrest." Broam, 320 F.3d at 1033. The fact that evidence may be -2- a gathered during a code enforcement inspection, that may lead to the filing of criminal charges, also clearly does not bring conduct during these inspections within the scope of prosecutorial immunity. Goldstein v. Van De Kamp 91h Cir., March 28, 2007 (No. 06- 55537) ("... work cannot be `retroactively transform[ed]' into prosecutorial simply because `the evidence this work produced' might affect whether a prosecutor decides to bring a case or, it a case is brought, how the evidence is presented at trial." Buckley v. Fitzsimmons, 509 U.S. 259, 275-276 (1993).). As a consequence of Mr. Penman's erroneous public and private legal advice, we likely have city officials and personnel that wrongly believe they are immune from civil rights liability if they are acting at the request of, or in concert with, the city attorney. This incorrect assumption of absolute immunity created by Mr. Penman is especially concerning in the context of which it has been given - code enforcement inspections. Code enforcement inspections typically involve the entry onto private property and entry into private dwelling units by city officials and employees. Tenants who are not owners of the property are also typically involved, as well as their personnel possessions. It is critical that city officials and employees involved in code enforcement inspections, including employees of the City Attorney's Office, clearly understand a need to ensure the civil rights and liberties of the persons and property involved in code enforcement inspections are respected at all times, and that a failure to act accordingly could result in significant liability to them individually and to the city collectively. Expeditiously ® correcting Mr. Penman's erroneous advice is vital to ensuring the city avoids significant exposure to liability for both the city and its employees. -3- k CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Mayor Patrick Morris and Members of the Common Council FROM: Council Office SUBJECT: Agenda Item #33 - July 16, 2007 Meeting DATE: July 16, 2007 COPIES: City Manager; City Clerk; City Attorney Crime in San Bernardino is up. Violent crime is up 6 percent and crime is up 2 percent overall from last year according to the University of California Riverside. Parolee houses are now open in nearly every region of San Bernardino. Nearly 1 in every 100 residents of San Bernardino is a parolee! According to newspaper reports, State Parole has doubled the number of parolees in San Bernardino from approximately 900 in 2000 to over 1800 today, while the County as a whole has seen only a 12 percent increase in parolees overall in that same time period. According to confidential reports I have received directly from San Bernardino Police Officers, only 40 to 50 percent of the parolees in San Bernardino are actually from San Bernardino, the rest are from all over the County. In 1996 I had the opportunity to work directly on the issue of parolee dumping as a Field Representative with then Assemblyman Fred Aguiar. Working in concert with the San Bernardino Area Chamber of Commerce, Aguiar authored AB 614, which required the State to return parolees to their County of legal residence. This law stopped the dumping of parolees from Los Angeles into the Inland Empire. Unfortunately, it was only a regional fix. In 2000, the City of San Bernardino began aggressive sweeps of overfilled and unsafe parolee housing in San Bernardino. This aggressive action reduced the number of parolees in San Bernardino by 20 percent and forced the State to the table with the City to resolve the parolee #33 J Mayor & Common Council July 16, 2007 Page 2 dumping issue, but it did not last long. Once the threat of the parolee sweeps was stopped by then Mayor Valles, the dumping quickly resumed. Like Neville Chamberlain, some in the City believe we can actually work with the State to effectively address this issue. That clearly has not worked. As a Police Officer on the command staff who will remain anonymous told me, "these people (State Parole) are NOT our friends." Winded and misleading declarations by the Mayor and his staff (including an erroneous legal opinion from his Chief of Staff son) that the City is effectively addressing parolee dumping run flat into a wall of statistics that prove that our parolee population is out of control. Coddling criminals clearly does not work. Busting a few parolees from outside of our County is insufficient. 40 GPS bracelets is a baby step. $100,000 grants for more "planning" on the issue are a joke. Pushing parolees out of the Operation Phoenix target area into other regions of our City is offensive. I If the past seven years are any indication of the State's willingness to dump its problems on our constituents, the leaders of San Bernardino must act. It is time for the City to aggressively close the parolee flophouses that are out of compliance with State law and City code, both for their safety and ours. This is not about politics, it is about being honest with ourselves and understanding the reality that the State has no motivation to truly fix this problem. I NEIL DERRY Councilman, Fourth Ward ND:s1 attch. JJL/ !U/ LUU1/1v1v:v UJ • 1-, Hill nn Av. l, UUI 1Jt111YJ3U11GU1L1iVLU rd1U1GG3 3Uly 11GG W UdnG l,1VWLUL18 r2Lb'C 1 Vl`t '4. :.i Article Searc Lz:51 dailybullefin .com Ontario,CA,7l16l2007 HOME NEWS SPORTS $USINESS OPINIONS ENTERTAINMENT HEAI TH TRAVEL INFC ■ del_icio.us hlJ Digg Reddit ?JYahooMyWeb FUGoogle Parolees stay free to ease crowding PC Shift puts emphasis on rehabilitation By Edwin Garcia,Sacramento Bureau • Article Launched: 0711312007 11:46:57 PM PDT SACRAMENTO-Prison officials in Gov.Arnold Schwarzenegger's administration have acknowledged that some parole violators are no longer being sent back to prison-part of a philosophical shift that will reduce �a overcrowding In the state's prisons. Special Section: Criminal Neglect The state's parole chief Insisted that most of those being given a second chance are not violent offenders, but the notion that an Increasing number of parolees are getting a break rankles some tough-on-crime advocates and conservative lawmakers. Nearly 10,000 more parolees are on the streets today than last July, according to the California Department of Corrections and Rehabilitation-an 8.4 percent increase that far outpaces the growth in the prison population, which was just 0.6 percent over that same time. When asked about those numbers, administration officials acknowledged Thursday that,indeed, parole agents are directing more parolees into rehabilitation programs instead of prisons, particularly for minor violations that used to keep them locked up for months. The change in direction-hailed by parole-reform advocates and criminal defense attorneys-occurred quietly at a time when federal judges are threatening to Impose Advertisement a population cap for the state prison system. Currently, 173,000 Inmates are packed into space built for 100,000. Criminal justice experts said California's tougher parole standards contribute to it having the highest recidivism rate In the nation. The policy shift should bring the state more in line with the rest of the nation. Thomas Hoffman, head of the prison system's adult parole division, couldn't readily provide statistics to determine the criminal history of parolees, but he said most were"non-violent, non-serious offenders." The change, he said, Is part of a broader"philosophical, cultural, social change"sweeping through the Corrections Department. "We've got a system that obviously isn't working,"Hoffman said, "and now the struggle is what is the solution, and I think we're working through that as a state and still got a long ways to go." http_//www.dailyhulletin.com/search/ci_6373570 7/16/2007 11�L� l �uuiilviull u�, I i{ivi VhA iv o. f. UUL Lally LUL10LL11.I.Vlll -r al UMCa ,lay 11GG lV Q0.aG 1.1 V W Ullls rQ�=�'i G Ul 't Last month,the state's rehabilitation oversight I board suggested that a policy shift on parolees was warranted, but the numbers suggest that parole commissioners had already stopped sending some parole violators back to prison. r The parolee population has jumped to 127,151 from 117,354 over the past year, r4 _ r, "The numbers are shocking, and I think it's scary for any law-abiding citizen,"said state Sen. Jeffrey Denham, R-Merced."We shouldn't be focused on clearing bed space; we should be worried about enforcing the law r and making more bed space for those that are continuing to prey on our citizens." Jew: v Meanwhile,the California Institution for Men in �-r*ir:`�,".°�`f;:�- :.• :: i:•�,:^ ;';:.r.:.. s. : �f:ii.:t`.yi^ Chino has had no relief from overcrowding. "As of two days ago we were at full capacity and concerned we were not going to have enough beds to house the inmates coming in,"said Lt. Mark Hargrove,spokesman for CIM. I ' He said 2,000 inmates from Las Angeles County are on a waiting list to be brought into custody at the prison. I "Los Angeles County jails are holding inmates to wait for the department to have beds available,"he said. Hargrove said the prison averages an addition of 800 inmates a week from flue counties, Every inmate released from prison Is automatically placed on parole, meaning they must abide by certain restrictions and remain under the supervision of a parole agent for at least a year or face going back to prison. Studies have shown that about seven In 10 Inmates released from California prisons will return to the system within two years-the highest raddivism rate of any state. Parolees most likely to receive second chances, Hoffman said, are those who break rules known as technical violations, such as failing to attend a class for men found guilty of domestic violence or skipping a routine meeting with a parole officer. "This isn't soft on crime,"Hoffman said. "It's smart on crime," Nearly two-thirds of parolees are sent back to prison for technical violations, said criminology experts Robert Weisberg and Joan Petersilia. Assemblyman Todd Spitzer, R-Orange,a former prosecutor and chairman of a prison construction committee, said it was too early to judge the effect on the public's safety until further analyzing the type of violations that are i keeping parolees from prison. "As long as it's truly technical, I'm not going to flip out about It,"Spitzer said, "But if they're using the term 'technical violation'to encompass all parole violations, including violations of the law, I'm going to have a real problem with that." Assemblywoman Sally Lieber, D-Mountain View, a proponent of parole and sentencing reform, doubted the administration was succeeding in solving overcrowding. "So they've got more people in prison, and more people on parole than last year, and they're claiming victory?" she said. "I think they've got to keep working on it. I don't think they've got it solved yet." i The state's shift doesn't surprise experts who study crime and punishment. http://www.dailybulletin.corn/search/ci_6373570 7/16/2007 �VL! Ili/ LUUI/1v1VVI UJ• !U run rnn 11 V, 1, Vvi 1J[iiiyj1LAL.ru11.VVL L -1 al Vlvva amy 11 VV LV %,"Ov VA V W 0 AAAk5 1 ar J Vl Y "The rate of admissions In California Is driven dramatically by parole revocations, so all you need to do is change policies Slightly, and then you would start seeing a decrease or a lessening of the increase in the prison population,"said Chn sty Visher, a principal research associate at the Justice Policy Center,which is part of the Urban Institute In Washington, D.C. Schwarzenegger is a firm believer in recently enacted legislation,AB 900,that promises to build tens of thousands of prison and jail beds, and be them to rehabilitation programs.And he has stated repeatedly he will not release violent inmates from prison. His administration also is pleading with the federal court not to Impose a prison population cap but Instead allow the state to solve the overcrowding crisis through a number of measures, including rehabilitation of inmates who are addicted to drugs. Parolees and their advocates are pleased with the change In direction. �. "Public safety is a byproduct of having more safe, and less dangerous, people on the street,"said Jeff Stein, a San Luis Obispo defense lawyer and leader with the California Attorneys for Criminal Justice."There is no correlation that more time means more safety, so more thoughtfulness in corrections means more safety-" The shift also was well-received by parolees attending a mandatory,state-run meeting in Oakland this week for those who were freed from prison in recent days. Wilbert Winchester, 50, has been in and out of prison for 27 years, often on parole violations. He has enrolled in a substance-abuse treatment program and the fact that he was being paroled at a time when the state says its emphasizing rehabilitation -and keeping parolees from re-entering prison-wasn't lost on him. "I see a little hope there." Staff writer Shelli DeRobertis contributed to this report. g Print ©Email 0 Return to Top More News • SoCal lawmakers defend their vote for war nearly five years later • One year later, mourners gather to celebrate life • Reactions mixed on sexual-abuse settlement • Mixed cultures at Hawaiian-fiesta days • 2 killed in separate incidents • Pot dispensary landlords risk losing property r Copyright Notice I Privacy Policy I Information For more local Southern California news: Select a newspaper... Copyright C 2007 Los Angeles Newspaper Group http://www.dailybidletin.com/search/ei-6373570 7/1612007 ��RNFYen� r r v a" a INTER OFFICE MEMORANDUM Oi"' ICE OF THE C"I TY A` "T(,.)RNEY CITY OF SAN 2E >n ecardat Counril/Cmvne+rCms Mtg: -711& f 7 by -- To: Councilman Neil Derry 3 3 re AUzirda Item _ From: James F. Penman City Attorney City Clerk/CDC Secy Date: July 16, 2007 - City of San Bernardino Subject: Analysis of July 13, 2007 Memo from Mayor's Chief of Staff Copies: Mayor Morris, Council Members, City Clerk, City Manager In response to your request of Friday,July 13 for a legal opinion regarding the issue of prosecutorial immunity,please find that opinion attached,along with a separate legal analysis of the memo of the Mayor's Chief of Staff's of the same date. Special Counsel for the City/RDA,Joseph Arias,who has been trying cases involving prosecutorial immunity for thirty years, has read the memo from the Mayor's Chief of staff and the conclusions of his legal opinion differ with the conclusion found in that memo. Mr. Arias' memo is attached. In addition,Deputy City Attorney N,Donn Dimichele,who was a Senior Appellate Court Attorney for eleven years with the Fourth District Court of Appeal in Riverside("4th DCA")has also prepared an analysis of the prosecutorial immunity privilege. Mr. Dimichele,who authored over 400 written judicial decisions for the 4th DCA, says the"view of the [Mayor's] Chief of Staff that involvement of the prosecuting attorney in an investigation has no bearing on whether the official conducting the investigation will be immune is both unfortunate and inaccurate." I believe the decision to have the Mayor's Chief of Staff prepare a legal analysis of the issue of prosecutorial immunity without his first contacting this office was a mistake. Likewise,the decision to release that memo, containing an incomplete and erroneous legal analysis and conclusion, was also an error. Had we been consulted beforehand, instead of receiving a copy of the memo after it was publically distributed, we would have advised the Mayor's Chief of Staff of the numerous inspections that have been conducted under this theory for over fifteen years. We also would have informed him of the numerous inspections conducted within the past two years,inspections on which the statute of limitations to bring a lawsuit against the City has not run. We also would have advised him of how pending cases against the City could possibly be impacted by the publication of his Councilman Neil Derry July 16, 2007 Page two incomplete legal research, and the resulting erroneous legal analysis and conclusion. Finally,we would have explained that over the past fifteen years,in meetings with property owners, and in some cases their attorneys, we have been able to persuade potential plaintiffs not to file law suits against the city based on the prosecutorial immunity of the police officers, fire inspectors and code enforcement officers, who were acting as investigators for the City Attorney's office. By referring potential plaintiffs' attorneys to the appropriate case and statutory law, several concluded that city employees who conducted the Team Inspections did have prosecutorial immunity and on that basis, they told us they were advising their clients that it would be a waste of their time and money to challenge those inspections in court. Prior to initiating and following the current process of team inspections coordinated by the Office of the City Attorney,several lawsuits were filed against the City as a result of the Team Inspections. Although we won most of them, we also lost a few. Those lost cases, we have been informed by legal experts, would likely have been dismissed on motions for summary judgment had the argument of prosecutorial immunity been available as a defense to those who were serving as de facto investigators for the City Attorney's rney' s office. Respectfully submitted, )m7esF. enm an y Attorney i ARIAS & Lock-WOOD >\1EMORANDUM CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE JOINT DEFENSE PRIVILEGE MATERIAL This document and related correspondence are not intended to be disclosed to persons or entities outside of this claim litigation. TO: JAMES PENMAN FROM: ARIAS & LOCKWOOD DATE: JULY 16, 2007 My office was asked for a legal opinion on the following questions: 1 . Assuming the Office of the City Attorney, functioning as a prosecutorial agency, has probable cause that a specific building has one or more building code violations, will city officials who undertake to inspect the building (before a complaint is filed) and cite the landlord for such violations in a multi-department inspection, coordinated by the office of the City Attorney, enjoy absolute prosecutorial immunity or, alternatively, qualified immunity? 2. Is it advisable on any basis for the office of the City Attorney to coordinate a multi-department inspection and to be present at the inspection'? Short answer: yes to both questions. Discussion: it is generally true that police officers, municipal investigators or other public officials do not enjoy absolute prosecutorial immunity while conducting their own investigations which are not connected to a specific prosecution, i.e., a case that has been selected for prosecution. That's because those activities are not sufficiently connected to the judicial process. See Brown v. Bogen, 320 F.3d 1023 (9th Cir. 2003). -1- Prosecutors are absolutely immune from liability for their actions in filing criminal complaints as well as for gati Bring evidence -- before the complaint is filed -- to use in a prosecution after probable cause is established or criminal proceedings have begun. At bottom the test is whether the prosecutor is acting in an advocacy role for the government. Gathering and sorting evidence for presentation at. trial is, quite obviously, an advocacy role and entitles a prosecutor to absolute prosecutorial immunity. But what about investigators or other public officials who assist the prosecutor in gathering the evidence? Are they also entitled to absolute prosecutorial immunity? In KRL, et al. v. Russell Moore, et al. 384 F.3d 1105 (9th Cir. 2004) the 9th Circuit Court of Appeals, relying upon two US Supreme Court cases, held that investigators engaged in an investigation carried out in preparation for a prosecutor's case also enjoy absolute immunity. Acts undertaken by a public official in preparing for the initiation of judicial proceedings, and which occur in the course of his role as an advocate for the government, are entitled to the protections of absolute immunity. This usually will occur when the investigation is requested, and overseen by, the prosecutor himself. The Courts focus on "the nature of the function performed," not the identity of the actor who performed it," in deciding whether a public official is entitled to absolute prosecutorial immunity and that is why investigators may also be entitled to the same protection from liability as a prosecutor. See Bucklev v. Fitzsimmons, 509 US 259, 275, Forrester v. White, 484 US 219, 229. The rationale for this rule is that an investigator who gathers evidence for use in a specific prosecution, after probable cause has been established, or an indictment has been filed, is acting in an advocacy role that is intimately associated with the judicial process. Such public officials, therefore, are afforded the same protections that are afforded a prosecutor. See also K "' o RL v. Moore et. al. 4 P 38 F3 1105, (2004 9 Cir.) Note, however, that if a public official is not entitled to absolute prosecutorial immunity, he or she may nonetheless be entitled to qualified immunity. This type of immunity, unlike absolute prosecutorial immunity, requires jumping through a couple of hoops s but can in appropriate cases, be readily granted by a court. This type of immunity comes into la when the law is P Y not well settled or, even when it is, a public official can be said to have made an honest mistake. This issue reduces itself to the following question: "Could a reasonable public official familiar with the law in this area have believed that his -2- w actions were laNvful?" If the answer is yes, he or she is entitled to qualified mmuni It is important to note, however, that absolute prosecutorial immunity applies only to legitimate prosecutorial functions and investigations. It does not apply to other actionable conduct or misdeeds such as browbeating, the unlawful use of fot ce, unreasonable searches, bribes or anything else that is unlawful. Lastly, is there any valid reason for requiring, or allowing the office of the city attorney to coordinate, on-site, an inspection? The answer is yes. In the event of litigation for Civil Rights violations, city officials are almost always sued in their individual capacities in which case plaintiffs may seek punitive damages. In our opinion acting on the advice of counsel provides a strong defense to a claim for punitive damages. -3- l CITY OF SAN BERNARDINO INTRA-OFFICE MEMORANDUM TO: James F. Penman, City Attorney FROM: Donn Dimichele, Deputy City Attorney lx4 DATE: July 16, 2007 RE: Analysis of the Mayor's Chief of Staff 11emoranduin re: Prosecutorial Immunity The memorandum from the Mayor's Chief of Staff regarding the application of prosecutorial immunity to City investigators inaccurately represents the law in at least two ways. First, the memorandum creates the impression that in a federal civil rights action under title 42 United States Code section 1983, prosecutorial immunity does not apply to investigators, even if they work at the direction of prosecuting attorneys. To the contrary, case law establishes that immunity in a section 1983 action is not limited to prosecutors, but "has also been extended to cover those who assist the prosecutor in his duties." (Kaplan v. LaBarbera (1999) 58 Ca1.App.4th 175, 180.) Second, the Chief of Staff's memorandum completely ignores California law, apparently because its author assumes, incorrectly, that only federal law is relevant to the immunity issue. In fact, it is vitally important that California law be considered, because that law and not federal law will determine whether prosecutorial immunity applies to lawsuits against investigators that NOW are based on state law. Under California law, investigation performed to assist a prosec: °:or in presenting the govenunent's case is considered a part of the prosecution, and therefore is protected by prosecutorial immunity. 1. Overview of Prosecutorial Immunitv Prosecutorial immunity exists under both state and federal law. It provides that a government official cannot be sued for his or her conduct in the bringing or prosecution of a criminal case. (Cal.Gov.Code , § 821.6; Freeman on Behalf of The Sanctuary v. Hittle (9`h Cir. 1983) 708 F.2d 442, 443.) In both cases, the immunity is absolute, meaning that if the immunity applies, the person to whom it applies cannot be sued even if he or she should have known that the conduct in question was wrongful. Prosecutorial immunity is absolute because the law recognizes that prosecutors and those who assist them must be able to do their jobs without fear of being sued if someone should later claim to have been wrongly prosecuted. (Imbler v. Pachtman (1976) 424 U.S. 409, 424-427.) 2. Scone of Prosecutorial Immunitv Under Federal Law The issue of prosecutorial immunity under federal law arises in civil actions brought under title 42 United States Code section 1983, alleging the violation by government officials of a citizen's constitutional rights. It should be noted that while section 1983 is a federal statute, an action alleging the violation of section 1983 can be brought in either federal court or state court. Therefore, decisions not only of federal courts, but also of state courts applying federal law, must be considered in determining the scope of prosecutorial immunity in a section 1983 case. Decisions of the United States Court of Appeals for the Ninth Circuit—the federal circuit that covers California—hold that prosecutorial immunity applies not only to the actual 2 prosecution of the government's case in court, but also to other act' ities that are closely connected with the prosecution. Therefore, even though the immunity does not cover investigation performed for the purpose of determining whether a crime has been committed, it does cover investigation performed for the purpose of helping the prosecutor present the government's case to a judge or jury: "Prosecutors also enjoy absolute immunity . . . for gathering evidence to present to the trier of fact, as opposed to gathering evidence to determine whether probable cause exists to arrest." (Goldstein v. City of Long Beach (9`h Cir. 2007) 481 F.3d 1170, 1173.) Further, the immunity covers not only the prosecutor who presents the case in court, but also government investigators who secure the evidence necessary to present the case, even though they are not prosecutors themselves: "Investigators, employed by a prosecutor and performing investigative work in connection with a criminal prosecution, are entitled to the same degree of immunity as prosecutors." (Gobel v. Maricopa County (9th Cir.1989) 867 F.2d 1201, 1203, fn. 5.) In Freeman on Behalf of The Sanctuary v. Hittle (9`h Cir. 1983) 708 F.2d 442, the plaintiff sued several prosecutors and a prosecution investigator under section 1983, alleging that the investigator wrongfully tried to induce the plaintiff's landlord to terminate the plaintiff's lease. The Ninth Circuit Court of Appeals held the investigator was covered by prosecutorial immunity, because his conduct occurred in the preparation of the government's case: "Investigative functions carried out pursuant to the preparation of a prosecutor's case also enjoy absolute immunity." (Freeman,supra, at p. 443.) (Notably, the Freeman case, which extended prosecutorial immunity to the investigator, 3 is discussed in Broam v. Bogan (9`h Cir. 2003) 320 F.3d 1023, a case which is cited five times in the Chief of Staff-, memorandum. Yet the memorandum does not mention the Freeman case.) Like the Ninth Circuit Court of Appeals, California courts have held that prosecutorial immunity in a section 1983 action covers not only prosecutors themselves, but also those who assist them. As previously noted, the California Court of Appeal in Kaplan v. LaBarbera, supra, 58 Cal.App.4th 175, 180, stated that immunity from liability under section 1983 "has also been extended to cover those who assist the prosecutor in his duties." The court continued: "Here there is no dispute that the individual defendants were either prosecutors acting within the scope of their duties, or employees who were assisting the prosecutors. They are immune from liability under section 1983." (Ibid.) The courts recognize that "the line between investigative activities, which are protected only by qualified immunity, and traditional prosecutorial duties, which are granted absolute immunity, is not clear." (Broam, supra, p. 1029.) However, it should be clear that the greater the involvement of the prosecuting attorney in the investigation, the more likely a court will be to find that the investigation falls within the "traditional prosecutorial duties" of developing evidence to be used in presenting the government's case. In contrast, excluding the prosecuting attorney from any involvement in the investigation— as the Chief of Staff apparently would advocate— likely will lead a court to find the investigation falls outside the scope of"traditional prosecutorial duties," and therefore is not covered by absolute immunity. For that reason alone, involvement of the City Attorney's office in investigative activities is desirable even if that involvement by itself does not guarantee the activities will be covered by absolute immunitv. Finally, the Chief of Staff's memorandum overlooks another important advantage of 4 MW I r,voly inc the prosecuting attorney in the investigation: Even where purely investigative activities are involved, so that absolute prosecutorial immunity is not available, the likelihood that qualified immunity will protect an investigator from being sued under section 1983 is greater if the investigator acts at the direction of legal counsel. This is because qualified immunity applies where an officer acts with a good faith belief that his or her actions are proper, and reliance on the advice of an attorney is evidence of such a good faith belief: "While reliance on counsel's advice will not satisfy a defendant's burden of acting reasonably, it is evidence of defendant's good faith." (Lucero v. Hart (91h Cir. 1990) 915 F.2d 1367, 1371.) 3. Scope of Prosecutorial Immunity Under State Law L"nder California law, prosecutorial immunity is expressly conferred by Government Code section 821.6. That section states: "A public em555ployee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." The immunity conferred by section 821.6 is not a defense to a claim under section 1983, but it is a defense to a claim based on state law, such as malicious prosecution or intentional or negligent infliction of emotional distress. Am lou R. v. Count o Ri r ve side 1994 28 ( CaI.A .4th 1205 1211 Y Y .f ( ) pp , 1214. "Under California law the immunity statute is given an `expansive interpretation' in order to best further the rationale of the immunity, that is to allow the free exercise of the prosecutor's discretion and protect public officers from harassment in the performance of their duties." (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) In keeping with the "expansive interpretation"of section 821.6, "section 821.6 is not limited to the act of filing a criminal complaint. Instead, it also extends to actions taken in preparation for formal proceedings. 5 Because investigation is `an essential step' toward the institution of formal proceedings, ii, "is also cloaked with immunity." (Amlylou R., supra, at pp.. 1209-1210.) hi fact, prosecutorial immunity under section 821.6 applies to activities in preparation for a criminal prosecution even if no prosecution is ultimately filed. (Ingram, supra, p. 1293.) As with immunity under federal law, it should be clear that the likelihood that prosecutorial immunity under section 821.6 will apply to a government investigator is enhanced to the extent the investigator works under the direction of the prosecuting attorney. Involvement of the prosecuting attorney can only increase the probability that a court will ultimately conclude the investigator's activities were "`an essential step' toward the institution of formal proceedings,"and therefore cannot serve as the basis for liability. (Amylou R., supra.) The apparent view of the Chief of Staff that involvement of the prosecuting attorney in an investigation has no bearing on whether the official conducting the investigation will be immune is both unfortunate and inaccurate. 6 ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Neil Derry Subject: Reactivation of Parolee Sweeps Councilmember,Fourth Ward Dept: COUNCIL OFFICE Date: July 12, 2007 M&CC: July 16, 2007 Synopsis of Previous Council Action: None. Recommended motion: The Mayor and City Council directs the Police,Fire,Code Enforcement and other pertinent City departments to assist the City Attorney's Office by participating in team inspections of parolee housing facilities to gather evidence to be used by the City Attorney for prosecutions and other actions u er his au ity. Signature Contact person: Neil Derry Phone: 5188 Supporting data attached: July 11, 2007 memo from City Attorney Ward: FUNDING REQUIREMENTS: Amount: NI Source: Finance: Council Notes: Agenda Item No. CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Staff Report Subject: Reactivation of Parolee Sweeps I Background: According to recent newspaper reports, the City of San Bernardino has had a doubling of the number of parolees in our city from the year 2000 to today while our region as a whole has seen only a 12 percent increase over that same period. Statistics have long proven that the parolee population tends to repeat offend as much as 80% of the time. We, at the local level, cannot solve or cure the parolee rehabilitation problem, as much as we may want to, because that responsibility is currently the State's to solve. However, we can attempt to halt or at least thwart the parolee recidivism rate by consistently and aggressively inspecting parolee housing that must at least meet health and safety standards, in order to ensure the safety of the surrounding community and those parolees whom are attempting to rehabilitate themselves. City Code Enforcement clearly lacks the capacity in both manpower and experience in dealing with this issue and it would be highly imprudent to have code enforcement deal with paroled felons on their own. Additionally, any action without the direct involvement of the City Attorney's office would open the city to potential litigation as code enforcement lacks the necessary prosecutorial immunity to carry out such sensitive actions. It is all too clear that the state has ignored its responsibilities and has engaged in parolee dumping within San Bernardino. I am all too familiar with this issue as a former staff member for then Assemblymember Fred Aguiar, who authored the initial legislation on parolee dumping (AB 614) in 1996. The City of San Bernardino must proactively engage these facilities to ensure their compliance with state law and city ordinances. Only a collaborative effort with numerous city departments can achieve the safe and appropriate housing of parolees and the safety of our community. Through this Council action, I respectfully request that my col'------- 4;,---t the City Manager to encourage and assist in consistent and aggressive t memo from the City Attorney' office, to resume the previous? program of parolee housing under the City Attorney's prosecute other city department or office has. O . � Thank you for your consideration. I CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM RECEiYED C 1 Y ATTCiY Y TO: James Penman, City Attorney 261 J�JL 10 P 2 51 FROM: Council Office SUBJECT: Growth in Parolee Population in San Bernardino DATE: July 10, 2007 COPIES: According to The Sun, the parolee population has increased significantly. In the past years, the City coordinated sweeps of parolee housing facilities to insure that these housing facilities were in compliance with State law. What actions need to be taken by the Council to reactivate the parolee sweeps? NEIL DERRY Councilman, Fourth Ward ND:sl A a� 'Y�ED 1 INTER OFFICE MEMORANDUM OFFICE OF THE CITY ,ATTORNEY CITY OF SAN BERNARDINO To: Councilman Neil Derry From: James F. Penman City Attorney Date: July 11, 2007 Subject: Reactivation of Parolee Sweeps Copies: Mayor, Councilmembers, City Clerk, City Manager In response to your memorandum of July 10 (copy attached), regarding the above-referenced topic, the following information is offered. The San Bernardino City Attorney's Office presently coordinates one team inspection per month, with the exception of the holiday months of November and December. These inspections are usually focused on apartment complexes. Occasionally, a single-family house, a business, or other structure is inspected by the inspection team. Inspection locations are chosen by the Chief of Police, or his designee. The purpose of these inspections is to gather evidence for the City Attorney's Office to determine whether or not the location inspected is in violation of any Municipal Codes, including the Uniform Building Code, Uniform Fire Code, Uniform Code for the Abatement of Dangerous Buildings, etc., all of which have been adopted by this City. This evidence is used to determine if the City Attorney's Office should prosecute the building's owners/occupants with criminal citations or"long-form complaints", or whether the City Attorney's Office should bring a civil action in the name of the People of the State of California to abate the property using the State's Nuisance Abatement Act, Narcotics Abatement Act, or, on occasion, the Red-Light Abatement Act. The process for these inspections is important since it confers prosecutorial immunity on Police, Code Enforcement, Fire Inspectors, and their supervisors. This is because their assistance and participation is at the request of the City Attorney's Office which is carrying out its City Prosecutor responsibilities conferred by the City Charter/City Municipal Code and State Law. The current team inspections have had the support of the Mayor's Office, the City Manager, and the participating City departments. As a result of the Mayor's efforts, several San Bernardino I Councilman Neil Derry July 11, 2007 Page two County departments have joined in these inspections. This collaborative effort has made these team inspections even more productive than they were in previous years. In 2000, the inspection team, at the request of the City Attorney's Office, inspected and closed a number of illegal parolee halfway houses in this City. In each case, these houses had more than six parolees in residence, and each house had numerous Municipal Code violations. As a result, at least seven were closed. Additionally, pursuant to this City's permissive Development Code (a Development Code that only permits the land uses specifically listed), use as parolee halfway houses was not permitted and none of those houses were eligible for licensing. As a result of the information discovered during these inspections, in October 2000, then Secretary of the State Youth and Adult Correctional Agency, Robert Presley, said he had determined that State Parole had violated its own guidelines by placing certain parolees in the City of San Bernardino. Secretary Presley said there were at least 400 parolees in the City who should not be here and announced that he was imposing a cap of 700 parolees for the City of San Bernardino. He also said he had frozen all transfers into the City and, until the 400 parolees were removed, no new parolees would be sent here. At that time, State Parole said the City had 1,101 parolees. On February 20, 2001, San Bernardino Police reported that State Parole had removed from the City of San Bernardino 200 of the 400 parolees who should not have been here. Police also said no new parolees were being allowed to come to San Bernardino. This was the last time the parolee population of this City was in significant decline. According to State Parole statistics, San Bernardino's parolee "base" (not the actual count) at this time was estimated to be 970 parolees. On March 23, 2001, State Parole officials publically announced that the cap of 700 parolees for this City was not viable. At the present time, there are an estimated 1,800 to 2,000 parolees in the City of San Bernardino. This does not include parolees-at-large who are here illegally from other jurisdictions. We are presently aware of at least three locations that are being used to illegally house parolees in violation of the State's limit of no more than six beds per facility. These three locations are also allegedly in violation of the City's Municipal Code, specifically the Uniform Fire Code, the Uniform Building Code, and the Uniform Code for the Abatement of Dangerous Buildings, as well as other codes that have also been adopted by this City. Inspections would be necessary to confirm this information. I - Councilman Neil Derry July 11, 2007 Page three These locations are not only dangerous for the community as a whole, they are dangerous for the parolees who are housed in these unsafe, often over-crowded and unsanitary buildings. It is difficult for a parolee to attain successful rehabilitation when he/she is placed in one of these locations. The peer pressure, lack of supervision, and the temptations provided at these sites, which sometimes include drugs and alcohol, guarantee that even the most reform-minded parolees will face additional obstacles on their path to rehabilitation. In response to your specific question, in order for us to gather the necessary evidence by inspecting the locations of which we are presently aware, and others that Police Officers claim are in our City, Police, Fire, Code Enforcement, and other pertinent City departments would have to receive authorization from the Mayor and City Council to assist the City Attorney's Office by participating in team inspections to gather evidence to be used by this office. Following the same procedure presently in effect for the team inspections provides legal protection for the inspectors, City officials, other City personnel, and the City as an entity. This is because the involved City personnel would have prosecutorial immunity for their actions during these inspections. The legal basis for the prosecutorial immunity is that the involved City personnel would be responding to requests made by the City Prosecutor to gather evidence for prosecutions, and said personnel would be acting pursuant to the authority of the City Prosecutor. As is the procedure in the current team inspections, the parolee housing inspections would be coordinated by a Deputy City Attorney under the immediate supervision of the Senior Assistant City Attorney for Litigation and Prosecutions and with the assistance of City Attorney Investigators. Also following the current procedure, the site locations would be chosen by the Chief of Police, or his designee, and the inspections would be conducted by City Fire Prevention Officers and Code Enforcement Officers under the supervision of officials in their own departments. Animal Control, Public Services, and Los Padrinos would be involved on an as- needed basis. I believe that such inspections would likely attain the highest degree of success only if the Mayor, the Council, the City Manager, and the involved City departments are willing to act collaboratively in this effort. The inspections that have been carried out over the past several years have demonstrated that such collaboration is possible. If there is no coordination, collaboration, and unity of purpose, the value of such inspections will be greatly diminished. Respectfully submitted, f JJ F.es Penman ity Attorney i CITY OF SAN BERNARDINO OFFICE OF THE MAYOR M INTEROFFICE ME RANDUM O TO: Members of the Common Council Fred Wilson, City Manager FROM: Mayor Patrick J. Morri SUBJECT: Agenda Item #33 - July 16, 2007 Meeting DATE: July 13, 2007 CC: City Attorney; City Clerk On July 12, 2007, the Mayor and Common Council received information regarding agenda item #33 for the July 16, 2007 meeting of the Mayor and Common Council. As you are aware, the agenda item addresses code enforcement inspections, and parolees living in San Bernardino. Unfortunately, the agenda item and the back-up information was prepared without consultation with city officials who are directly involved in these matters, namely the Code Enforcement Director, the Chief of Police, the City Manager, and the Office of the Mayor. As a result, the back-up documents to the agenda item contain no information regarding the proactive and successful efforts by the Police Department, Code Enforcement Department, and the Office of the Mayor on the issues of code enforcement inspections and dealing with parolees in our city. In addition, I am concerned that there were some factual misstatements and legal confusions contained in the back-up information to agenda item #33. I have asked the Chief of Police, the Code Enforcement Director, and my staff to prepare memos detailing the efforts and successes that have been made by the City over the last 15 months, and the strategies that are currently underway, to address the ongoing code enforcement issues in our city and the issues created by parolees living in our city. These memos also address some of the factual and legal issues contained in the back-up information to agenda item#33. Copies of the memos are attached for your review in advance of our meeting on Monday. 4- City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Mayor Patrick J. Morris From: Chief Michael A. Billdt Subject: Parole Apprehension Strategies Date: July 13, 2007 Consistent with your direction, the following report regarding the collaborative partnership with California State Parole is submitted for your consideration. I. Apprehension of Parolees at Large • Since 2000, the San Bernardino Police Department has enjoyed a strategic partnership with California State Parole. • Five police officers have been assigned, one for each policing district, to work with their counterparts from State Parole. • Known as Parole liaison officers, the focus of their efforts is to work closely with State Parole agents to monitor parolees released to the City of San Bernardino. • Each week SBPD officers attend a parolee orientation meeting where opportunities and expectations are presented to the parolees. • In February 2007, San Bernardino Police working collaboratively with State Parole identified 85 parolees who were relocated to their counties of commitment consistent with State law. • In support of our long-term relationship with State Parole and in furtherance of efforts as recent as February of this year, Regional Administrator Jeff Fagot has made a commitment of additional State Parole resources that will team with San Bernardino Police Officers. This will provide an enhanced focus on apprehending parolees at large, and will begin in conjunction with our summer deployment model. • SBPD parolee liaison officers within each of the five district commands will work with their counterparts through our continued collaboration with State THE SBPD IS COMMITTED TO PROVIDING: PROGRESSIVE QUALITY POLICE SERVICE; A SAFE ENVIRONMENT TO IMPROVE THE QUALITY OF LIFE; A REDUCTION IN CRIME THROUGH PROBLEM RECOGNITION AND PROBLEM SOLVING j Page 2 parole to identify parolees at large within their respective areas and make all practical efforts to take them into custody. II. Expansion of Operation Phoenix • On June 10, 2006, Operation Phoenix focused on the twenty block area bounded by Baseline and 16`x' Street and Sierra Way and Waterman Avenues. At that time 42 parolees were living in the focus area. Since that time eight parolees have successfully discharged, 15 parolees are back in custody, and 7 have moved from the Operation Phoenix area. Two of them moved outside the city and 5 of those remained in the City of San Bernardino. One resides in the central district of town and 4 in the eastern district of our city. Currently, 24 parolees reside in the current Operation Phoenix area. 4 Consistent with the model implemented in the original Operation Phoenix area, San Bernardino Police and State Parole in the five areas identified for expansion under the Operation Phoenix model will identify parolee housing within each of the focus areas. Parolees, who are residing in the community in violation of their parole terms, will be relocated to their county of commitment consistent with State law. • Through the process of this effort, substandard housing conditions involving the housing of parolees will be identified and referred to Code Enforcement for follow-up. • Once significant headway has been made in the five focus areas, the collaboration of State Parole and SBPD officers will then expand their efforts through research to identify other parolee housing locations within the city and determine the nature of compliance at each location. • The protocol will entail referral of substandard housing conditions to Code Enforcement as necessary. ..-.- ifYYrif�'-�rlfi�liYlllYYfiYYIYfM • Y r CITY OF SAN BERNARDINO CODE COMPLIANCE DEPARTMENT INTEROFFICE MEMORANDUM TO: Patrick Morris, Mayor Fred Wilson, City Manager FROM: Glenn Baude, Director Code Enforcement SUBJECT: INSPECTIONS DATE: July 13, 2007 Code Enforcement routinely does inspection of residential properties. The reason for these inspections is based solely on the conditions of the property. We may also inspect properties that are alleged to be in violation of the Development Code by housing more than 6 unrelated persons (commonly known as "half-way houses" or "group homes") to ensure that the home is in full compliance with the Development Code. If we do not obtain consent to inspect from the owner, we would have to be able to substantiate "reasonable cause" that there are more than 6 persons living in the home to obtain a warrant. However, the residency of the people occupying the residents is not a cause for inspection or within our scope of authority. We cannot obtain an inspection warrant based on a person's race, religion or status nor should we. We do not have aM basis to regulate or target parolees - it is not our role or authority. We do routinely run across people on parole in the course of doing inspections on properties. When we do interior inspection on warrants it is normal procedure to have the police department with us. We work cooperatively with many law enforcement agencies including our Police Department as well as Parole and Probation but they perform their roles of dealing with the people issue and we deal with issues related to the condition of properties. We do not attempt to control or direct what they do and they don't involve themselves in our issues; we work collaboratively with each agency performing their particular role. In fact we have performed the following warrants and closures in the 2006/2007 fiscal year with collaboration and support from law enforcement agencies: C WARRANTS CLOSURES* July 2006 10 0 August 2006 10 10 September 2006 10 46** October 2006 17 10 November 2006 4 12 December 2006 4 4 January 2007 12 4 February 2007 12 6*** March 2007 18 13 April 2007 20 18 May 2007 13 18 June 2007 36 13 Total 166 154 * The number of closures were obtained from the Hearing Agenda's. Each unit, if located in a multi-family complex were counted as a separate closure. In addition, the closures were counted in the month that it was taken to hearing and not necessarily in the month that the actual closure took place. In all cases we were conservative in our estimates so a more thorough review would probably show slightly higher numbers. ** This included the closure of Meadowbrook Apartments (Sr. Housing) due to lack of air conditioning in 100°+ weather. ***This includes 1 count for the closure of the Clarion Hotel CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM MAYOR'S OFFICE TO: Patrick J. Morris, Mayor FM: Kurt Wilson,Director, Office of Community Safety and Violence Prevention RE: Summary of current efforts to address parolee population DT: July 13,2007 CC: Fred Wilson,Jim Morris In an effort to increase public safety the Mayor has taken three separate but parallel courses of actions to address the issues and impacts of parolees in San Bernardino during his first 16 months in office. The first is the monitoring of High Risk Sex Offenders and violent gang members with the use of active Global Positioning Satellite technology. The second is the creation of the Mayor's reentry advisory panel. The third is the application and award of $100,000 to fund the planning of a better reentry strategy to lessen the impact on our citizens. Global Positioning Satellite Monitoring of High Risk Parolees Days before officially beginning his term,the Mayor leveraged his experience as a jurist to broker an agreement with the Division of Adult Parole Operations allowing San Bernardino to be the pilot city for the GPS tracking of violent gang members returning from state prison. We are currently monitoring 20 High Risk Sex Offenders and 20 Violent Gang member parolees. Although GPS tracking can be cost prohibitive, the city bears no cost in the current arrangement which has proven effective in removing violent offenders from our streets. The program has been so successful that it has gained the interest of state and local governments from as far away as Alaska, where the state legislature sought the Mayor's counsel as they entered an investigatory stage of the program. In the coming weeks, Fresno officials will travel to San Bernardino to learn first-hand the process of using GPS devices to monitor parolees. Mayor's Reentry Advisory Panel The Mayor's Reentry Advisory Panel is a comprehensive panel of experts, assembled by the Mayor last December, who are advising the Mayor on best-practices and viable options for reducing the victimization rate of our citizens by parolees. The collaboration addresses both policy and practical concepts including the opportunities for, and barriers to, success. Panelists include former top state officials like the Secretary of the California Department of Corrections and Rehabilitation and the Director of the California Youth Authority. It also includes current public officials from the San Bernardino Police Department, county and federal Probation, Sheriff's Department,United States Department of Justice, District Attorney's Office, Department of Behavioral Health, San Bernardino Employment Training Agency, and others. The private sector is represented by Goodwill Southern California, Center for the Study of Correctional Education`at Cal State San Bernardino, Restorative Justice Center, United Way, Diocese of San Bernardino, Stop the Violence Foundation, Time for Change Foundation, various employers and treatment providers. The group recently joined the Mayor in hosting a renowned former White House official who spoke on the topic. The event drew 150 dignitaries including the Presiding Judge as well as members of the FBI and ATF. The panel continues to meet on an ongoing basis with the next meeting to be scheduled for the Fall. Inter-Governmental Partnership reentry planning grant from the California Department of Corrections and Rehabilitation Division of Community Partnerships In December 2006 the Mayor's Office and its partners were awarded a competitive grant of $100,000 to plan a better reentry strategy—one that reduces the victimization rate of this community. The Inter-Governmental Partnership grant was awarded by the Division of Community Partnerships and began in February 2007. At this point we are nearing the midway point on the grant and have gathered large amounts of data. During the next 6 months this data will be organized and a final report of the findings will be presented early in 2008. We have shared information with the Orange County Reentry Partnership and the cities of Riverside, San Diego, Fresno, Los Angeles, Oakland, Richmond, etc. During this process we have conducted extensive academic research, interviews, site visits, observations, and telephone conversations with a variety of stakeholders. Among these are Governor Schwarzenegger and his Senior staff, the offices of Senators Feinstein and Boxer, current and former Secretaries of the CA Department of Corrections and Rehabilitation, Division of Adult Parole Operations (state and regional directors, local administrator, local agents), Center for the study of Correctional Education, American Association of Community Justice Professionals, California Pan-Ethnic Health Network, victims of crime, current and former parolees, and private contractors currently operating approved residential multi-service centers in LA, San Diego, and Sacramento. During the next phase of the grant, the team will conduct a series of community meetings with '" various stakeholders. The purpose of the meetings will be to quantify the position and concerns of citizens and business owners. In addition, it will provide an opportunity to educate members of the public on the factual data surrounding the issue of parolees. Information gained as a result of this dialogue will feed the analysis and ultimately contribute to the proposed solution. While many of these efforts have been underway throughout the Mayor's entire term in office, these issues are the result of decades worth of contributing factors. Progress can be seen as a direct result of these efforts but the final solution will not be a quick one. Under the Mayor's direction, we are prepared to continue the current process as we join our partners in the search answers to creating a safer community. CITY OF SAN BERNARDINO OFFICE OF THE MAYOR INTRAOFFICE MEMORANDUM TO: Patrick J. Morris, Mayor FROM: James P. Morris, Chief of Srrff � SUBJECT: Legal Advice from City Attorney on Applicability of "Prosecutorial Immunity" to Code Enforcement Inspections DATE: July 13, 2007 Pursuant to your request, the public legal advice provided by the City Attorney, James F. Penman, regarding the application of "prosecutorial immunity" to city officials and employees has been researched. The results of the research show that Mr. Penman has advised the city directly contrary to well-established and clear law established by the United States Supreme Court and the federal Ninth Circuit Court of Appeals In his memo of July 11th, and in the newspaper the following day, Mr. Penman has advised city officials that it is critical for Mr. Penman and the City Attorney's Office to be granted the power to oversee, control, and lead code enforcement inspections because this will provide city officials and employees a shield from civil rights liability under a legal theory known as "prosecutorial immunity." Mr. Penman has provided this same legal advice directly to the Mayor on at least three previous occasions during discussions about the need of the City Attorney's Office to work collaboratively with other departments and the county during code enforcement inspections. Mr. Penman has not provided any other rationale for his persistent request to be given this authority over code enforcement and police personnel and resources. Were Mr. Penman correct in his interpretation of the law on prosecutorial immunity, every city in California and across the nation would be organizing their code enforcement inspections under their city attorneys. But just the opposite is true. Instead, Mr. Penman has provided the city with an outright misinterpretation of the law, and as a result, both our city and its employees are placed in significant danger and risk of personal and municipal liability. "Prosecutorial immunity" is neither a new legal theory nor a vague one; instead it is a narrowly and clearly defined exception to civil rights liability for government officials. As a general rule, government officials have only "qualified immunity" from civil rights liability in carrying out their duties. Burns v. Reed, 500 U.S. 478; Harlow v. Fitzgerald, 457 U.S. 800 (1982). This means that immunity applies only if a government official's -1- y r action could reasonably have been thought consistent with the civil rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635 (1987). Prosecutorial immunity, however, provides a government official absolute immunity from civil rights liability, and as a result, the U.S. Supreme Court has consistently interpreted this absolute immunity very narrowly. Forrester v. rite, 484 U.S. 219 (1988). This absolute prosecutorial immunity applies only to conduct that is "intimately associated with the judicial phase criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Absolute immunity does not apply if the person is "performing investigatory or administrative functions, or is essentially functioning as a police officer or detective." Broam v. Bogan, 320 F.3d 1023, 1028 (9t Cir. 2003). In Broam, the Ninth Circuit Court of Appeals made very clear that absolute prosecutorial immunity does not apply to actions "during the investigative phase of a criminal case" or to actions "considered functions of the police," or to actions conducted "prior to having probable cause to arrest." Broam, 320 F.3d at 1033. The court recently reaffirmed this rule when it held that "an act is not `prosecutorial' simply because it has some connection with the judicial process or may have some impact at the trial level. Were that the rule then prosecutors would be absolutely immune from any suit because all actions taken by prosecutors arguably have some connection to the judicial process." Goldstein v. Van De Kamp 91h Cir., March 28, 2007 (No. 06-55537). Alarmingly, Mr. Penman has advised city officers and employees directly contrary to this clear rule of law. In his memo on July 11, 2007 to the City Council, Mr. Penman stated that his control and organization of code enforcement inspections would provide city personnel "prosecutorial immunity for their actions during these inspections." He further stated that prosecutorial immunity would apply to city personnel during these code enforcement inspections because they "would be responding to requests made by the City Prosecutor to gather evidence for prosecutions." Mr. Penman's advice is completely contrary to the Ninth Circuit Court of Appeals, who has made it very clear that prosecutorial immunity does not apply to actions "during the investigative phase of a criminal case." Broam, 320 F.3d at 1033. It does not matter whether such actions were requested by a city prosecutor or not, nor does it matter whether such code enforcement actions eventually lead to a criminal prosecution. Id. Code enforcement inspections are done for purposes of ensuring property owners comply with the city's municipal codes, or other applicable laws which the city has jurisdiction to enforce. Last year, over 7,000 code enforcement inspections were completed, and with the exception of very few cases, compliance was enforced through civil citation. When recalcitrant property owners fail to comply, or if the code violations are especially concerning, civil or criminal enforcement may be sought through the courts. Thus, code enforcement inspections are nothing more than an investigatory tool which may lead to the filing of criminal charges. The federal courts have clearly stated that prosecutorial immunity does not apply to "investigative" actions, or to actions "prior to having probable cause to arrest." Broam, 320 F.3d at 1033. The fact that evidence may be -2- gathered during a code enforcement inspection, that may lead to the filing of criminal charges, also clearly does not bring conduct during these inspections within the scope of prosecutorial immunity. Goldstein v. Van De Kamp 91h Cir., March 28, 2007 (No. 06- 55537) ("... work cannot be `retroactively transform[ed]' into prosecutorial simply because `the evidence this work produced' might affect whether a prosecutor decides to bring a case or, it a case is brought, how the evidence is presented at trial." Buckley v. Fitzsimmons, 509 U.S. 259, 275-276 (1993).). As a consequence of Mr. Penman's erroneous public and private legal advice, we likely have city officials and personnel that wrongly believe they are immune from civil rights liability if they are acting at the request of, or in concert with, the city attorney. This incorrect assumption of absolute immunity created by Mr. Penman is especially concerning in the context of which it has been given - code enforcement inspections. Code enforcement inspections typically involve the entry onto private property and entry into private dwelling units by city officials and employees. Tenants who are not owners of the property are also typically involved, as well as their personnel possessions. It is critical that city officials and employees involved in code enforcement inspections, including employees of the City Attorney's Office, clearly understand a need to ensure the civil rights and liberties of the persons and property involved in code enforcement inspections are respected at all times, and that a failure to act accordingly could result in significant liability to them individually and to the city collectively. Expeditiously correcting Mr. Penman's erroneous advice is vital to ensuring the city avoids significant exposure to liability for both the city and its employees. -3-